High Court a New Power in Canada : Charter Allows Justices to Check Parliament and Cabinet

A revolution is under way here that, in one aspect, is moving Canada away from a system designed to set it apart from the United States toward one that more closely resembles the U.S. system.

The Supreme Court of Canada, with a suddenness uncharacteristic of this country, has become an important force in public life for the first time, setting off a debate within the government and the legal community.

As a product of British colonialism, Canada developed a British-style parliamentary system of government, with its House of Commons being the sole and final arbiter on legislative matters and issues concerning the civil liberties of its citizens.

There was no U.S.-style constitution and no formal Bill of Rights limiting government powers. What Parliament said and did was the supreme law of the land. In the words of Edward Greenspan, a prominent Toronto lawyer, “Parliament could make a man a woman.”

Charter of Rights

But four years ago, Canada’s Parliament approved the Charter of Rights, which codified concepts previously guaranteed only by tradition and the whim of Parliament. It also elevated the nine justices of the Supreme Court to a position of potential political dominance, although they never run for office and are not accountable directly to the public.

Once virtually unknown to the public and dealing largely with technical issues and jurisdictional disputes, the Supreme Court has lately assumed power to an extent unmatched in Britain or in most other countries that follow the British parliamentary system.

The justices contend that under the Charter of Rights they have the power to decide which laws and actions of Parliament are legitimate and which are not.

Although this is familiar ground to Americans, it presents challenges and opportunities for Canadians that they have not fully grasped. That situation is reflected in the debate within the government and the legal community.

New Rules Expected

Allan Hutchinson, a constitutional expert at Osgoode Hall Law School in Toronto, has written that the Supreme Court justices intend “to rewrite the rules of the constitutional game as they go along.”

Alan Borovoy, head of the Canadian Civil Liberties Assn. in Toronto, said not long ago: “I’m an old-fashioned democrat. I don’t think appointed judges should exercise that kind of power over elected officials.”

This is not a problem, Greenspan said in an interview.

“The arguments against the charter are a lot of anti-charter hysteria,” he said. Yet he acknowledged that “when you impose a Charter of Rights onto a parliamentary democracy, you are doing something very radical.”

Rhetoric aside, there seem to be legitimate concerns on both sides.

Government Powers

The court has moved into areas generally conceded to be the preserve of the government in power. And it has made decisions that could threaten the traditional Canadian preference for collective rights over the rights of the individual.

On the other hand, the charter guarantees the rights of free speech and assembly and a free press. And the court has, in the words of Edward Ratushny, a law professor at Ottawa University, “moved to ease the conditions of disadvantaged groups.”

The circumstances that led to the adoption of the charter and the debate that has ensued go back to 1867, the year that Canada became independent under the British North America Act. There were disputes at the time between French-speaking Quebec and the English sectors of the country, and the provinces were unwilling to subject themselves to total domination by the new federal government. All this led to an impasse over a constitution.

As a result, no constitution was adopted, and for years the British North America Act was Canada’s only documentary foundation. In theory, Canada remained under the jurisdiction of the British Parliament, with the House of Lords in London acting as the final arbiter of judicial disputes.

Trudeau’s Fight

While there was virtually no interference by London in Canadian affairs, Canadian political figures made it a goal to acquire a genuine constitution. The push toward that goal intensified under Pierre Elliott Trudeau, prime minister from 1968 to 1979, as he fought for equal rights for Quebec and equality for the French language.

Trudeau also advocated greater individual rights and civil liberties and a stronger role for the federal government. Increasingly, Canadians accepted his position, some say because of the growing influence of American culture here.

A compromise in 1982 led to the Charter of Rights, a document that incorporates some of the ideas of the U.S. Bill of Rights while trying to preserve Canadian concepts of collective rights. There is, for example, no mention of the right of property. And the charter speaks of the right “to security of person” rather than the “pursuit of happiness.”

To ease the concerns of provinces and of critics who feared unfettered power in the hands of the federal judiciary, the charter allows any province and the federal government to declare themselves exempt from the application of specific pieces of federal legislation or federal court decisions.

‘Notwithstanding Clause’

This “notwithstanding clause,” as it is called, was used by Quebec to exempt from federal court review all of the laws passed by the provincial legislature from 1982 until last December. Otherwise, only Saskatchewan has invoked the clause--to force public employees back to work after they had gone on strike.

Legal authorities, however, do not expect such exemptions to be taken often.

On the other hand, the Supreme Court, which is not specifically mentioned in the charter, has actively sought to create power for itself. It has struck down federal Sunday-closing laws, invalidated a Quebec law limiting the use of English, prohibited the federal government from restricting press access to information about search warrants and ruled that federal regulations on immigration were unfair.

But of most importance was a May, 1985, decision of the court in a suit by a peace group seeking to stop the federal government from allowing the United States to test cruise missiles over Canadian territory under an agreement Trudeau’s government made with Washington in 1982.

Key Decision

Although the justices upheld the agreement, they rejected government arguments that they had no jurisdiction over foreign policy questions and held that the court could review Cabinet decisions. With that single decision, the Supreme Court rattled the foundation of parliamentary theory--that the legislature is supreme in all aspects of government.

Some critics find this frightening. Hutchinson, the constitutional expert, wrote in the Toronto Star: “Legislators will begin to look over their shoulders more than ever at the brooding and shadowy presence of the courts. The decision will have a chilling effect on the democratic process of policy-making and the capacity of elected representatives to respond to popular sentiment or follow the dictates of their social conscience.”

Even some supporters of the charter acknowledge that they now tend to consider what the courts might do when drafting legislation.

Ray Hnatyshyn, the federal minister of justice, said in an interview: “We have to face reality. . . . Things may be challenged under the charter.”

Special Interests

There is also concern that Parliament may be tempted to pass legislation favoring politically important special interest groups on the assumption that the courts will later undo what Parliament has done. An example came earlier this year when the government proposed an anti-pornography measure that was so vague that nearly all constitutional experts agreed that it violated the charter.

“It was designed to placate the Tory right wing (the governing Progressive Conservative Party), but everyone figured it would be thrown out, so no real harm would be done,” a government official said.

As it turned out, the measure died when Parliament adjourned, and Hnatyshyn indicated that any new measure would not include most of the objectionable provisions.

Of greater concern to most critics is the possibility that the charter will be used by conservatives and advocates of property rights to weaken or even overturn Canada’s extensive social welfare system and to weaken the power of the labor unions.

‘Ritualistic Decision’

In an interview, civil liberties leader Borovoy mentioned an Ontario case in which a provincial judge cited the charter in upholding a suit attacking the right of unions to use dues to promote political causes.

“It was an unduly ritualistic decision,” he said, “and a potential threat to the way policy had been sorted out in the democratic process.”

Borovoy also expressed concern about the reliance that he said Canadian courts will have to place on American court decisions for guidance, since there is no existing body of constitutional law in Canada to furnish precedents.

“Throughout most of the early part of the century, the American courts struck down laws setting up minimum wages and other progressive laws as violations of the Constitution,” he said. “I don’t want that to happen here.”

‘Excellent’ Objection

Even such an otherwise avid charter supporter as Ottawa University’s Ratushny sees merit in such reservations.

“Borovoy’s objection is an excellent one,” Ratushny said. “The Canadian Supreme Court will likely be more sensitive to collective rights. . . . Unions, social welfare and the collective nature of Canada have gotten almost to the point of fundamental rights and would be protected under the clause that guarantees rights and freedoms generally.”

While the debate centers now on the power of the court versus the rights of Parliament, wider public concern is likely to be raised by eventual charter decisions dealing with criminal law, something that continues to spark controversy in the United States.

Greenspan, who is one of Canada’s leading criminal attorneys, said: “The Charter makes a tremendous, even fantastic difference. Before, the police were limited only by what was unlawful in such things as search and seizure. Now all of a sudden, there is the element of unreasonableness.

“There also is a notion of privacy. Citizens have a reasonable exercise of privacy. There is a commitment to fairness and dignity of the individual.”